Case alleging racial bias in hair tests goes to trial

By ALANNA DURKIN RICHERMarch 4, 2018

BOSTON (AP) — Keri Hogan was nearing her dream of becoming a Boston police officer when a drug test using a sample of her hair came back positive for cocaine.

Hogan and a group of black officers who lost their jobs or were disciplined sued the city in 2005, claiming its hair test is discriminatory because black people’s hair is more susceptible to false positives.

More than a decade later, the case that could have big implications for the practice of hair testing is heading to trial. The bench trial starts Monday.

“This is the test case that everyone is watching,” said Lewis Maltby, president of the National Workrights Institute, a New Jersey-based workers’ rights nonprofit.

Hair testing companies tout their products as superior to urine screening because they can detect drug use much farther back and it’s more difficult for users to cheat.

But experts have long been divided over the reliability of hair testing due to the difficulty in determining whether drugs were ingested or were absorbed into the hair from the environment.

“Hair is an excellent indicator of exposure” to drugs, said Dr. Peter Stout, president of the Houston Forensic Science Center, who isn’t involved in the case. “What starts to get difficult is determining from a hair result the route of that exposure.”

Experts agree that cocaine binds to melanin, which is found in higher concentrations in darker hair. But whether hair testing is racially discriminatory remains contentious.

David Kidwell, a chemist who will testify on behalf of the officers, also says cosmetic treatments commonly used by black people can damage hair cuticles, which increases the risk that hair becomes contaminated by drugs in the environment.

But Psychemedics, the company that continues to perform testing for Boston police, rejects any suggestion that its tests are racially biased. Psychemedics’ wash procedures eliminate any possibility of a false positive, he said.

“We know that our science is rock solid and we stand behind it today as we have for the last 30 years,” said Raymond Kubacki, president of Psychemedics, which also does drug testing for the New York Police Department.

Under Boston police’s policy, officers who test positive for the first time can try keeping their job by admitting to drug use and entering a rehabilitation program while they’re suspended and placed in an administrative position.

In 13 years of legal wrangling, the officers’ case has gone up to the 1st Circuit U.S. Court of Appeals twice and has cost the city at least $1.6 million to defend.

The appeals court, which revived the case in 2016, said a “reasonable” judge or jury could find that the department refused to adopt an alternative testing procedure that would have “met the department’s legitimate needs while having less of a disparate impact.”

That alternative, which Kidwell first proposed in 2003, is that police keep hair testing but only take disciplinary action if the officer also tests positive in a random urine screening program.

Attorneys for the city say that’s unnecessary and problematic.

Hogan and the officers insist they aren’t drug users. Hogan, who had been working as a cadet and was offered a coveted spot at the police academy, subsequently took an independent hair test that came back negative, she said.

“To this day, I struggle with the feeling of stigma and embarrassment I face whenever I encounter a Boston police officer or former colleague. I can tell they do not look at me the same way,” Hogan, now 39, said in an affidavit filed last month.

The Lawyers’ Committee for Civil Rights and Economic Justice, which is representing the officers, is seeking a court order that Hogan be admitted to the police academy.

Maltby, a critic of hair testing, said if Boston police lose the case, other departments may rethink their policies.

“I can’t imagine why they want to keep using it when they know that it doesn’t work and they’re being forced to fire good officers, particularly African American officers,” he said.